Law, Environmental Dynamism, Reliability: The Rise and Fall of CALFED
Owen, Dave, Environmental Law
I. INTRODUCTION II. CONCEPTUAL FRAMEWORKS AND DYNAMIC ENVIRONMENTS A. Traditional Paradigms B. Environmental Dynamism, Shared Resources, and a New Conceptual Approach III. CREATING THE TENSIONS: CONVENTIONAL FRAMEWORKS AND CALIFORNIA'S WATERS A. The Physical Environment B. Engineering Systems and Environmental Impacts C. The Legal Regime and Its Inherent Tensions 1. The Appropriative Rights System 2. Contracts 3. Environmental Statutes a. Substantive Constraints b. Procedural and Planning Laws 4. Water Conservation Laws D. The False Promise of Flexibility IV. THE CONFLUENCE OF TENSIONS--THE BAY-DELTA CONTROVERSY V. TOWARD MORE ROBUST SOLUTIONS VI. CONCLUSION
Imagine a typical river somewhere in the American west. Farms rely on its waters and divert much of its flow to irrigated fields. Cities depend upon it for domestic and industrial water supply. Despite diversions, dams, and exotic invaders, native species survive, albeit tenuously. Many of those species are legally protected, and some are quite economically valuable, or at least could be if their populations recovered. A variety of agencies, both federal and state, manage the river in accordance with complex politics and laws. While the agencies' agendas differ in some ways, they share the common goal of achieving a stable balance among its competing uses, and they possess, at least in theory, the money and expertise to achieve that goal. If they fail, the consequences will be troubling: species may go extinct; non-compliance with environmental laws could lead to citizen suits or agency enforcement actions, which could leave irrigators or cities without badly-needed water; and litigation, political conflict, and economic and social dislocation are all but inevitable. (1) Yet, if this river is like many real rivers throughout the west, or like many forests, fisheries, air basins, or other natural systems presenting similar challenges to environmental managers, (2) the chances of such failure are high. This Article explores why those problems so often recur.
The reasons are invariably complex, and this Article does not explore them all. Political process quirks, skewed economic incentives, ideological hostility to environmental protection, and a variety of other causes--all heavily analyzed by legal scholars--often contribute to failures. But the core thesis of this Article is that an additional factor deserves attention, and that the road to ruin is often smoothed by legal concepts. Flaws in our basic framework for understanding resource crises--a conceptual framework that both flows from and influences the legal schemes that govern resource management--play an important role in undermining efforts to achieve stability.
Environmental managers often think they should balance environmental protection and resource consumption in a particular way: they think they should allow resource consumption right up to perceived blinks of illegality and should provide just enough protection to avoid legal violations, but no more. That understanding follows logically from our legal systems, which often encourage resource consumption and environmental protection but do little to promote preservation of margins for error. A variety of legal and policy responses flow from that conceptual approach, including selection of management systems designed to allow, facilitate, or subsidize increased consumption even of scarce resources, but also designed to penalize any activity that pushes environmental degradation beyond the perceived brink. But because environmental conditions often change, frequently in unexpected and dramatic ways, brinks of illegality can be shifting and difficult to discern, and resource management schemes deriving from that basic approach often require rapid adjustment. And if, as is often the case, adjusting is institutionally or politically difficult, (3) that traditional approach can lead to fragile solutions prone to costly collapses. …